Breadcrumbs

EC-COI-91-4

February 14, 1991

FACTS:

Page 342

You were appointed in November, 1990 as the director of the state lottery. In that capacity, you supervise and administer the state lottery and serve as executive officer of the State Lottery Commission (SLC). G.L. c. 10, s.26. Prior to your appointment, you had business relationships with three separate organizations and wish to know whether you may maintain those relationships outside of your regular SLC work schedule.[1]

1. Since 1988, you have served as a compensated member of the board of directors of and occasional consultant to Pericomp Corporation (Pericomp), which designs and manufactures equipment for the testing of magnetic tape drives. Pericomp does not engage in any business with either the SLC or any Massachusetts state agency.

2. You are an unpaid member of the board of directors and a stockholder of Filemark Corporation (Filemark), a wholly owned subsidiary of Pericomp. Filemark provides computerized file management systems which involve the use of personal computers and scanners. Filemark does not engage in any business with either the SLC or any Massachusetts state agency.

3. You serve as a technical computer consultant to the president of a quasi-governmental agency of the state of New York, the New York State Catskill Region Off Track Betting Corporation (OTBC). The OTBC provides off-track betting services to the betting public in the Catskill Region of New York State and has no relationship with the SLC or with any Massachusetts state agency. You state that the computer systems operated by both OTBC and SLC are provided by the same supplier, General Instrument Corporation (GIC). You also state that you were initially hired as a technical consultant by the OTBC president in 1989.

QUESTION:

Does G.L. c. 268A permit you to retain your business relationships with Pericomp, Filemark and OTBC while you serve as director of the state lottery?

ANSWER:

Yes, subject to certain conditions.

DISCUSSION:

As director of the state lottery, you are considered a state employee for the purposes of G.L. c. 268A. See G.L. e. 268A, s.1(q). Three sections of G.L. c. 268A are relevant to the propriety of your after-hours activities.

Page 343

The first, G.L. c. 268A, s.4, prohibits you from either receiving compensation from or acting as agent for anyone other than the commonwealth or a state agency in connection with any contract, application, proceeding or other particular matter[2] in which the commonwealth or a state agency is either a party or has a direct and substantial interest. The second, G.L. c. 268A, s.6, prohibits you from participating[3] in your official capacity as lottery director in any particular matter which affects the financial interests of an organization with which you have an employment or director relationship. The third, G.L. c. 268A, s.23(b)(2), prohibits you from using your official state position to secure any unwarranted privileges or exemptions of substantial value for you or anyone else. Based on these statutory provisions, we offer the following advice.

1. Pericomp

Your compensated director and consultant relationship to Pericomp is permissible under G.L. c. 268A, s.4 since your activities as you describe them do not relate to any contract or other particular matter in which any commonwealth of Massachusetts agency is either a party or has a direct and substantial interest. Should the facts change and Pericomp propose to commence applications, contracts or other particular matters with any commonwealth of Massachusetts agencies, however, you should renew your opinion request with us.

Although there do not appear to be any current or prospective matters coming before you as lottery director affecting Pericomp's financial interests, you will be subject to the abstention requirements of G.L. c. 268A, s.6 should such matters arise. To comply with G.L. c. 268A, s.23(b)(2), you must conduct your Pericomp activities entirely outside of your SLC work schedule and must refrain from using SLC resources such as telephones, computers, postage and personnel for your Pericomp work.

2. Filemark

The same principles which apply to you in your Pericomp activities will also apply to you in your activities as a member of the board of directors and stockholder at Filemark. In particular, should Filemark seek to commence any dealings with agencies of the commonwealth of Massachusetts, we recommend that you renew your advisory opinion request.

3. OTCB

Because your consultant activities to OTCB do not relate to any particular matter in which a commonwealth of Massachusetts agency is either a party or has a direct and substantial interest, your OTCB activities as you describe them are permissible under G.L. c. 268A, s.4, subject to the condition that your activities be conducted entirely outside of your SLC work schedule and without the use of SLC resources. G.L. c. 268A, s.23(b)(2). Your facts also warrant discussion of two additional issues under G.L. c. 268A, s.23.

Section 23(b)(3) prohibits a state employee from conduct which would cause a reasonable person to conclude that the employee is likely to act as a result of undue influence of any person. This conclusion can be dispelled through a written disclosure by the employee relating the relevant facts to his or her state appointing authority. To the extent that, in your official SLC capacity, you will be dealing with GIC, which also supplies computer systems to OTCB, there could be an appearance that your official activities could be influenced by GIC's supplier relationship with OTCB. To dispel this appearance, you should disclose to your SLC appointing authority the relevant facts concerning your relationship with GIC.See, In the Matter of George Keverian, 1990 SEC 460.

Section 23(b)(1) prohibits a state employee from accepting paid employment, the responsibilities of which are inherently incompatible with the employee's public office. While your consultant responsibilities for OTCB do not appear to be incompatible with your current duties as lottery director, EC-COI-89-30, issues under s.23(b)(1) could arise if the scope of the SLC jurisdiction were expanded to include off-track betting. Should this occur we suggest that you renew your opinion request with us.[4]

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[1] The Commission does not possess the authority to interpret G.L. c. 10, s.26 and, in particular, whether your activities are violative of the statutory requirement that the director of the state lottery "shall devote his entire time and attention to the duties of his office." You should pursue with the Attorney General the interpretation of this requirement.

[2] "Particular matter," any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property. G.L. c. 268A, s.1(k).

[3] "Participate," participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, s.1(j).

[4] Given your pre-existing consultant relationship with OTCB, it does not appear that your maintenance of that relationship is "for or because of" any official acts as lottery director. G.L. c. 268A, s.3.